SCOTUS Curbs Recess Appointments

Sahil Kapur reports at Talking Points Memo:

The Supreme Court on Thursday curtailed the president's power to temporarily appoint individuals to government posts, delivering a blow to President Barack Obama and altering the balance of power between the executive and legislative branches.

Justice Stephen Breyer wrote the opinion for the Court.

The justices held that the Constitution does not permit the president to appoint people to government positions without Senate approval when the chamber is in a pro forma session -- when it gavels in and out once every three days to fulfill a constitutional requirement but does not conduct business.

"For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business," Breyer wrote, observing that the Senate does not define pro forma as a recess. "[W]e conclude that we must give great weight to the Senate’s own determination of when it is and when it is not in session. But our deference to the Senate cannot be absolute."

The majority opinion was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. The ruling was relatively narrow and could have been much worse for the Obama administration. The other four justices wanted to go further in curtailing the recess appointment power.